Winston v. Kelly

• Decision Date: 27 January 2010
• Docket Number: No. 09-2.,09-2.
• Parties: Leon J. WINSTON, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

592 F.3d 535

Leon J. WINSTON, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.

No. 09-2.

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2009.

Decided: January 27, 2010.

ARGUED: Jennifer Leigh Givens, Federal Community Defender's Office,

Philadelphia, Pennsylvania, for Appellant. Steven Andrew Witmer, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: James H. Moreno, Federal Community Defender's Office, Philadelphia, Pennsylvania, for Appellant. William C. Mims, Attorney General, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.

OPINION

MICHAEL, Circuit Judge.

Leon J. Winston was convicted of capital murder and sentenced to death by the Circuit Court for the City of Lynchburg, Virginia. After failing to obtain relief in state post-conviction proceedings, he petitioned the district court for a writ of habeas corpus. He now appeals the district court's denial of the writ. Winston presents the following issues, as authorized by the certificate of appealability: (1) whether he received ineffective assistance of counsel at the guilt phase of his trial; (2) whether the state trial court unconstitutionally denied his request for a lesser included homicide instruction; (3) whether Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), prohibits his execution because he is mentally retarded; (4) whether he received ineffective assistance when his counsel failed to argue that Atkins prohibits his execution; and (5) whether he otherwise received ineffective assistance at the sentencing phase of his trial.

We affirm the district court's denial of Winston's ineffective assistance claims for both the guilt and sentencing phases of his trial; we also affirm the denial of his jury instruction claim. On Winston's Atkins and Atkins-related claims, however, we conclude that further proceedings in the district court are required. As the district court recognized, because Winston presented material evidence in his federal habeas hearing with respect to the Atkins-related claims that was not considered by the Supreme Court of Virginia, these claims present complex questions concerning the application of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). A district court may not consider additional evidence in a federal habeas proceeding unless the petitioner has satisfied AEDPA's dual requirements of exhausting state remedies and developing the factual record in the state courts. While these requirements present a high bar for the petitioner, we conclude in this case that Winston cleared the bar. Winston's counsel for both his state and federal habeas applications did not find records of a test score relevant to proving his retardation until two weeks before the evidentiary hearing held by the district court. We hold that it was error for the district court to refuse to consider this evidence because the score does not fundamentally alter Winston's claims and because habeas counsel was diligent in searching for it. We therefore vacate the district court's judgment insofar as it denies Winston's Atkins and Atkins-related claims, and we remand for further proceedings on these claims.

I.

A.

On the morning of Friday, April 19, 2002, two men broke into Rhonda and Anthony Robinson's house. After confronting the Robinsons near their daughters' second-floor bedroom, one of the men followed Anthony Robinson downstairs. There, the man shot Anthony several times. He then returned upstairs and shot Rhonda in front of her daughters Niesha and Tiesha Whitehead. After the shootings the men left, leaving Rhonda and Anthony to die from their wounds. Leon Winston was later arrested and tried for the murders.

At trial two witnesses gave essentially uncontradicted testimony that Winston was present at the Robinsons' when the murders occurred. Michelle Lipford, who had been sexually intimate with Winston, testified that she drove him and a man named Kevin Brown to the Robinson house at about 5:00 a.m. on the morning of the murders. After waiting nearby in the car for an indeterminate time, Lipford heard gun shots and then drove off. Tranika Turner, Winston's girlfriend, testified that in response to a telephone request from Winston at 6:00 a.m. that same morning, she picked him up at a carwash near the Robinson house. Turner noted that when she picked him up, Winston was wearing a black hoodie with gray stripes.

To establish that Winston actually shot the Robinsons, the prosecution offered physical evidence, eyewitness testimony, and a confession. For physical evidence, the prosecution introduced a gun that forensic experts had identified as the murder weapon and on which Winston's DNA — and only Winston's DNA — was found. Robin Wilson testified that shortly after the murders Winston had given him the gun to keep.

For eyewitness testimony, the prosecution relied on nine-year-old Niesha Whitehead. While Niesha witnessed many of the events that transpired the morning of the murders, her testimony was somewhat inconsistent, and she could not directly identify Winston. She did, however, testify that her mother's voice woke her on the morning of the murders and that upon waking, she saw two black-skinned men outside her second floor bedroom. She saw one of the men, whom she called "Mr. No Name," follow Anthony Robinson downstairs. She then heard gunshots and saw Mr. No Name return to shoot her mother, Rhonda Robinson. On direct examination Niesha testified that Mr. No Name had a tattoo that looked like a "big dog," J.A. 39, and wore all black. It is undisputed that Winston has a tattoo on his arm matching the one described by Niesha, but Niesha could not remember whether Mr. No Name's clothing had any stripes on it. On cross examination she answered "Yes" twice when asked whether one man wore all black and one wore black with white stripes. She also answered "Yes" when asked whether the man in white stripes tried to stop Mr. No Name from shooting her mother. Finally, Niesha contradicted her testimony on direct by identifying the man with white stripes as the one with the tattoo.

For evidence of a confession, the prosecution called Nathan Rorls, a long-time friend of Winston's, as a witness. Rorls testified that Winston called him in April of 2002 and told him that he had "slumped two people" in Lynchburg — meaning he had "murdered somebody, killed somebody." Id. at 94. Rorls further testified that the day after he received the call, he saw Winston and Winston's cousin Pego (Peyton Carter) at a friend's house. There, Rorls said that Winston told him he had "killed two people and robbed them and stuff." Id. at 98. Rorls recounted that Winston proceeded to describe the crime in detail, noting that he (Winston) and "his codefendant" had taken two thousand dollars and two ounces of cocaine from the Robinsons. Id. at 101.

Winston did not take the stand. His counsel thus focused on undermining the credibility of the prosecution's witnesses and highlighting inconsistencies in the physical evidence. Pointing to Niesha Whitehead's testimony concerning the shooter's appearance, defense counsel contended that another man, Tywan Turner, was the likely shooter, and that Winston had tried to prevent the shooting. Counsel also challenged Rorls's testimony as fabricated and given to avoid the long prison term he was facing on drug charges. Finally, counsel challenged the testimony of Lipford and Wilson as unreliable and implausible.

The jury returned a verdict of guilty, convicting Winston of capital murder, robbery, and several lesser crimes. In the sentencing phase defense counsel presented testimony from Winston's family describing his troubled childhood. Winston's mother testified that he had never known his father, that she had been in and out of prison for much of his childhood, and that she regularly used PCP, marijuana, cocaine, and alcohol both before and after Winston was born. Winston's grandmother testified that she had frequently taken a very young Winston with her when she committed various larcenies. Finally, defense counsel introduced three psychological evaluations of Winston along with some related records, all from Winston's childhood.

The psychological evaluations, however, were not introduced to prove that Winston was mentally retarded under Virginia law. Rather, they were admitted as ordinary mitigating evidence, describing Winston's sub-average intellectual functioning and troubled childhood. Defense counsel took this approach despite the bounty of evidence in those evaluations and related records relevant to a determination of retardation under the applicable Virginia statute. The evaluations were accompanied by I.Q. scores of 77, 73, and 76, respectively. In one of the evaluations the psychologist commented that Winston was functioning in the "[b]orderline range of abilities" and that his "ability to recall specific verbal facts which are typically acquired through education and experience is extremely deficient and falls within the Mentally Retarded range (1st percentile)." J.A. 2133. In another the psychologist found that Winston had "borderline intellect and severe verbal processing problems." Id. The psychologist also noted that Winston's immaturity and passiveness "place him at a risk to be easily manipulated by others. He is likely to always follow the easiest path, the strongest leader." Id.

Also in defense counsel's possession, but not submitted to the jury, were additional records from the Fairfax County Department of Student Services and Special Education (Fairfax County). These records showed that Winston was eligible for special education due to "mild retardation," that he "demonstrate[d] a reduced rate of...